Costs questioned in failed death-penalty case

The Justice Department doesn’t often seek the death penalty, but this case appeared to be as close to a slam dunk as a prosecutor could get.

Brian Richardson was already serving the rest of his life in prison for armed robberies. Now he had methodically killed his cellmate at the U.S. Penitentiary in Atlanta. After repeatedly stabbing and then strangling the 60-year-old man, Richardson decided to shave before alerting guards.

But the government didn’t get the death penalty for Brian Richardson. His jury could not reach a unanimous verdict so, by law, he received life without parole.

In the meantime, Richardson’s case required more than 20 lawyers and consumed thousands of hours of their time. It cost hundreds of thousands of dollars in fees from expert witnesses, some who cost the government $1,900 an hour but were never allowed to testify. And it derailed the careers of two federal prosecutors — one accused of defying a court order, the other caught making outrageous comments to a snitch on a recorded phone call.

“This was a colossal waste of taxpayer money,” Brian Mendelsohn, one of Richardson’s lawyers, said. “Brian was willing to plead guilty in exchange for a life sentence from day one. This entire episode could have been avoided.”

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U.S. Attorney Sally Yates said her office stands by its decision and holds firm to the belief Richardson will kill again. “I don’t have any trepidation or second thoughts as to whether it was appropriate to seek death in this case.”

The four-year-long prosecution culminated in a nine-week jury trial this spring. Yates declined to provide records detailing the cost of the prosecution.

But among the costs to taxpayers was more than $150,000 billed by mental health experts who planned to testify against Richardson but were prohibited from doing so. U.S. District Judge Clarence Cooper barred the testimony after finding prosecutors misled him as to how the government’s experts would conduct Richardson’s evaluation.

The prosecutors no longer work for the U.S. Attorney’s Office in Atlanta and are being investigated by the Justice Department’s Office of Professional Responsibility.

Yates admits mistakes were made. But “we don’t believe that any of our prosecutors intended to mislead the court,” she said.

‘I’m gonna kill somebody’

Court records show the U.S. Attorney’s Office assigned eight prosecutors to the case. It flew in victims of crimes committed by Richardson years ago to testify at trial. And it helped get reduced sentences for a number of inmates who cooperated with the prosecution.

The Federal Defender’s Office also devoted enormous resources. It assigned four attorneys and two investigators to Richardson’s defense. It spent almost $200,000 for its experts and expenses.

In addition, 20 private attorneys were appointed — and paid $125 an hour — to represent inmates asked by prosecutors to testify against Richardson.

At the time of the July 2007 murder, Richardson, 49, had almost 50 years left on a 65-year prison sentence. An Alabama native and a former Marine, Richardson has several striking tattoos, including a swastika, skulls and the initials CWA (“Cracker With Attitude”).

Previously in lockup, Richardson splashed bleach in a guard’s face and stabbed other inmates. He was accused of talking a troubled inmate into committing suicide.

Transferred to Atlanta because he’d recently attacked an inmate at a Florida prison, Richardson was put in the same cell with a child molester. Once a predator, Steven O’Bara had become easy prey.

In his confession, Richardson told FBI agents he killed O’Bara because he was a pedophile. He said he stabbed O’Bara nine times with a shiv fashioned from a fire extinguisher pin. He then choked him by stepping on his throat before wrapping a sock around O’Bara’s neck and strangling him.

After he killed O’Bara, Richardson coldly told agents, “Somebody else is gonna get skinned up bad. First chance I get, I’m gonna kill somebody.”

U.S. attorneys off case

When the death-penalty notice was filed, Assistant U.S. Attorneys Todd Alley and Matt Jackson cited Richardson’s future dangerousness, present lack of remorse and violent past.

By the time the case went to trial, Alley and Jackson were no longer on the prosecution team.

Jackson was removed after Richardson’s lawyers came across recorded conversations he had with Jack Morris, an inmate serving time for dealing crack cocaine and who was cooperating with the prosecution, discussing his expected testimony. The calls were recorded as a matter of routine at the prison.

During one call, Morris said he’d “murder her verbally” on the witness stand, referring to one of Richardson’s lawyers. To which Jackson replied, “Or you can just jump over the podium and go over and stab her. We’ll go light on you. If you do kill her, a day of community service.”

After the U.S. Attorney’s Office found out about the phone calls, Jackson was taken off the case and prosecutors decided not to use Morris as a witness. Even so, Morris received a 53-month reduction of his sentence as credit for his cooperation, court records show.

Cooper, who presided over the case, disqualified Alley from the case after finding he may have had a conflict of interest because an inmate was alleging Richardson made threats to kill Alley. But Alley violated Cooper’s order by continuing to stay involved in the case, including giving Morris a cover story to keep other inmates from knowing he was a government snitch, a defense motion said.

Neither Jackson, now a federal prosecutor in Florida, nor Alley, now in private practice in Atlanta, returned phone calls seeking comment.

Psychiatric testimony axed

Before trial, a key thrust of Richardson’s defense was to present testimony from experts who believed he suffered from schizophrenia, which could be managed with proper medication.

To rebut that evidence, the U.S. Attorney’s Office hired The Forensic Panel. The practice was founded by forensic psychiatrist Michael Welner, who has testified in numerous high-profile cases.

Welner pioneered a peer review process to safeguard the validity of his findings, using up to three mental health experts in a case instead of one. In Richardson’s case, Welner contracted neuropsychologist Joel Morgan to interview and evaluate Richardson. Welner also hired neuropsychologist Bernice Marcopulos and psychiatrist Robert Trestman to review Morgan’s work.

The review went forward, but Cooper, the trial judge, found prosecutors misled him as to how Richardson’s evaluation was to be conducted.

In an order, Cooper said he was led to believe Morgan would draft a report free of input and influence from anyone else and that would be later reviewed by Marcopulos and Trestman. Instead, Cooper found that Morgan consulted with Marcupulos and Trestman before interviewing Richardson and then, after conferring with Trestman, changed his initial diagnosis that Richardson suffered from schizophrenia to an opinion that he suffered from antisocial personality disorder.

This meant there was no longer a level playing field — the government now had three mental health experts and the defense had one, Cooper found. The judge said that, while “grave,” his only remedy was to exclude The Forensic Panel experts from testifying.

This meant jurors never heard prosecution testimony that Richardson had an antisocial personality disorder. This would have been akin to calling Richardson a sociopath — a person with no regard for right and wrong and who has no remorse for his violent behavior. It also meant jurors did not hear from Welner, who was going to testify Richardson was a future danger and could commit violent acts again.

“It can be quite powerful testimony in a capital trial,” said David Bruck, a professor at Washington and Lee University School of Law. “It can give jurors something to hang their hats on when deciding to impose a death sentence.”

Yates said it would be “pure conjecture” as to whether the loss of the experts’ testimony would have made a difference at trial. She said her office’s conversations with jurors “indicated that those who voted in favor of life in prison did so for reasons other than Richardson’s mental health defense.”

Welner said Morgan would have contradicted testimony that Richardson would be an unremarkable inmate if given the right medication. The defense, Welner said, fabricated a tale the jury could digest, and The Forensic Panel would have shown Richardson’s violent history was at odds with that narrative.

Welner was also prohibited from testifying as a prosecution witness that Richardson was a future danger. Welner declined to go into the specifics of his planned testimony, but he revealed the gist of it in a statement to The Atlanta Journal-Constitution.

“That [the] defense endeavored to exclude my testimony without knowing what it even would be speaks to how obvious and frightening Mr. Richardson’s future risk is...,” he wrote. “Really, now, would any participant in this case whose relative is doing time want them anywhere near Brian Richardson?”

The Forensic Panel billed more than $150,000 to the government, Yates estimated.

Welner charged $475 an hour for his time and for the time of each of his peer-review panel experts. This meant that when Welner and his three experts had a conference call, it cost $1,900 an hour, although Welner said this happened on very few occasions and was a small percentage of his overall billings.

Court records show The Forensic Panel paid $275 an hour to Morgan and Trestman and $250 an hour to Marcopulos for the work they did on the Richardson case. Yates, the U.S. attorney, said she had been unaware of the $200-$225 difference in how much Welner billed for his experts’ work and how much he paid them until it was disclosed during a hearing during the trial.

Welner said the difference helps pay expenses, the overhead at his New York office, salaries of his staff and the teaching and research The Forensic Panel provides at no profit. “Like any institution whose doctors practice under its banner, whether it is a medical center, private hospital or others, doctors who bill for their time are paid a portion of that fee and a portion of that fee goes to the institution,” he said.

Welner said his peer-review process safeguards objectivity, promotes diligence and ensures adherence to updated standards. “There are many attorneys who decide that the costs we save them in the quality of our work outpace the costs of not using this practice,” he said.

Jury split on death penalty

Mendelsohn, one of Richardson’s defenders, said that before the trial his office brought in people who would have qualified as jurors. They were told about the murder, Richardson’s violent past and the fact O’Bara was a child molester. Half voted for death and half for life, Mendelsohn said.

At the end of Richardson’s trial, seven jurors voted for the death penalty and five for life, prosecutors and defense lawyers said.

The victim’s brother, Scott O’Bara, supported the decision to seek death for Richardson and said prosecutors “did a great job as far as I’m concerned.”

“Unfortunately, for as long as he lives in prison he may have an opportunity to kill again,” O’Bara said. “For those jurors who voted against the death penalty, or who were undecided, should it be a prison guard with a family just doing their job, your vote against or your undecided vote will be something you will have to live with for the rest of your life.”

Stephanie Kearns, who heads the Federal Defender’s office, called the outcome a just result.

“Brian Richardson was a very sick man,” she said. “His untreated mental illness and the culture that had been engrained in him over the two decades he spent in the most violent prison systems of this country, coalesced into the perfect storm when he found himself locked in a cell with a convicted pedophile.”

Staff writer Greg Bluestein contributed to this article.

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